Overview: Today's hands-off approach can be tomorrow's negligent hiring lawsuit. As a result, many employers turn to a variety of preemployment screening measures to find out ahead of time about any warning signs involving job applicants.
These measures can include employee background checks, reference checks, credit checks, drug tests, job-related aptitude tests and post-offer medical examinations. However, HR professionals should be certain to check their state employment laws as well as federal statutes to ensure that their testing efforts do not overstep.
If an employer decides to engage in any of these testing measures, it must do so across-the-board with all applicants in a consistent fashion. A failure to do so could lead to later discrimination claims.
Trends: Some states prevent employers from asking job applicants about arrests. Others have "Ban the Box" laws that prohibit employers from asking candidates to check off on an initial job application form if they have been convicted of a crime. This does not preclude such questions later in the selection process.
Employers also should be aware that several states limit the use of credit checks to certain positions where financial data, sensitive information or managerial responsibilities will be involved.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to include notice requirements under the Fair Credit Reporting Act, effective September 21, 2018.
Updated to reflect additional notice requirements under interim rule, effective September 21, 2018.
As mandated by the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission, consumer reporting agencies must provide consumers with a Summary of Consumer Identity Theft Rights Form informing them of their rights to obtain a security freeze on their credit report.
Effective September 21 2018, employers and background check companies should begin using two updated Fair Credit Reporting Act model forms with new notice requirements.
A federal court in Connecticut has ruled that a failed drug test should not have disqualified a registered medical marijuana user from beginning employment.
Updated to reflect forthcoming amendments regarding certificates of relief for criminal convictions.
Updated to include information on a discrimination case involving the medical marijuana law.
Updated to reflect eligibility for medical marijuana use based on obstructive sleep apnea or autism, effective August 1, 2018.
HR Guidance concerning federal and state legal requirements on the screening and testing of job applicants.